John Edward Bryson, Jr. v. Brenda Mae Bryson (Appeal from Madison Circuit Court: DR-16-490.02).

Rel: May 23, 2025

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2024-2025
_________________________

CL-2024-0704
_________________________

John Edward Bryson, Jr.

v.

Brenda Mae Bryson

Appeal from Madison Circuit Court
(DR-16-490.02)

EDWARDS, Judge.

John Edward Bryson, Jr. ("the former husband"), and Brenda Mae

Bryson ("the former wife") were divorced by the Madison Circuit Court

("the trial court") in a September 2017 judgment ("the divorce

judgment"). In the divorce judgment, the trial court ordered that,
CL-2024-0704

beginning in October 2017, the former husband would pay to the former

wife $400 per month as periodic alimony and $500 per month as child

support for the parties' minor child.1 In February 2019, the parties again

appeared before the trial court due to "a dispute between the parties

regarding monies due and owed by the [former husband]." In a June 2019

order, the trial court determined that the former husband owed to the

former wife $7,155.94 and required that the former husband pay the

former wife $1,427.97 in a lump sum and the remaining $5,727.97 at a

rate of $500 per month until the remainder was paid in full. The trial

court further noted that "[s]aid sums shall be paid in addition to the

alimony currently paid by the [former husband] to the [former wife]." The

June 2019 order does not disclose whether the $7,155.94 owed to the

former wife was an alimony arrearage, a child-support arrearage, or a

combination of the two.

In August 2019, the trial court entered an order amending its June

2019 order. Pursuant to the August 2019 order, the former husband was

to pay the former wife $500 per month until the $5,727.97 arrearage

1The parties' minor child was born on July 30, 1999, and reached

the age of majority in 2018.
2
CL-2024-0704

balance (sometimes referred to as "the 2019 arrearage amount") was

retired. Additionally, the trial court recognized that the former husband

was paying the former wife $461 per month pursuant to an existing

income-withholding order 2 and ordered that that income-withholding

order was to remain in effect until the 2019 arrearage amount was paid

in full, at which time the former husband would resume making periodic-

alimony payments of $400 per month.

In November 2023, the former wife filed in the trial court a petition

seeking to have the former husband held in contempt, alleging that the

former husband had failed to make 8 of his 12 monthly alimony payments

in 2023. 3 The trial court later permitted the former wife to amend her

petition to include an allegation that the former husband had not paid

alimony between the months of January 2024 and April 2024. The

former husband filed an answer and asserted a counterclaim seeking to

2In a December 2017 order on a motion to alter, amend, or vacate

the divorce judgment, the trial court noted that it had issued an income-
withholding order in November 2017; the income-withholding order does
not appear in the record. The record provides that the withholding was
satisfied by two withholdings per month of $230.77 per paycheck.

3Although the former wife filed the contempt petition in November

2023, she alleged that the former husband did not make an alimony
payment in December 2023.
3
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terminate his alimony obligation because, he said, he was fully disabled

and the former wife had "experienced increased success from her

employment" as a real-estate agent. He acknowledged that he had failed

to make the required monthly alimony payments in 2023 but stated that

he had done so "without a contemptuous heart" and that he had been

unable to make the required alimony payments because he was disabled.

At the trial, which was commenced on April 12, 2024, and was

concluded on June 20, 2024 ("the April 2024 trial date" and "the June

2024 trial date," respectively), the former wife, appearing pro se, alleged

that, as of the April 2024 trial date, the former husband had failed to

make 6 alimony payments in 2021, 5 alimony payments in 2022, 8

alimony payments in 2023, and 4 alimony payments in 2024, for a total

of 23 delinquent alimony payments. 4 She also testified that the former

husband still owed to her $3,210.28 of the 2019 arrearage amount. The

former wife agreed with the trial court's calculation and stated that she

4The former wife stated at trial that the former husband had failed

to make his alimony payments in January, April, July, August,
September, October, November, and December in 2023 and in January,
February, March, and April in 2024. The former husband presented
evidence indicating that he had not made alimony payments in January,
February, March, November, and December 2022.
4
CL-2024-0704

was seeking an alimony arrearage of $12,410.28, plus an unspecified

amount in statutory interest. Based on the record, the total amount of

$12,410.28 was comprised of $9,200, representing the 23 allegedly

delinquent $400 monthly alimony payments, and the $3,210.28 that the

former wife claimed that the former husband still owed her of the 2019

arrearage amount. The trial court, over the objections of the former

husband's attorney, permitted the former wife to present evidence and

arguments regarding the outstanding $3,210.28, despite that amount

not being referenced in the former wife's petition for contempt because,

according to the trial court, the former wife's petition "just [said] failure

to pay alimony in certain places." Between the April 2024 trial date and

the June 2024 trial date, the former husband paid the former wife $5,000.

The former wife acknowledged on the June 2024 trial date that, based on

the former husband's $5,000 payment, she was seeking $7,410 as

arrearages plus unspecified interest from the former husband.

The former wife testified that she had been employed as a real-

estate agent since 2017 and had been employed at Smith Douglas Homes

since August 2022. She testified that she had earned approximately

$19,000 in 2021 and that her income for 2023 was approximately

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$133,492. 5 She testified that, in addition to a salary, she was paid 1.25%

of her sales as a commission. 6 She also testified that at the time of the

April 2024 trial date, she had sold approximately six houses, had four

houses pending sale, and had eight houses currently listed for sale. She

further testified that her monthly expenses were approximately $16,000

per month. She testified that that amount included approximately

$4,000 per month for work-related travel expenses, $300 per month for

tutoring for at least one child that she had fostered or adopted since the

September 2017 divorce, and $1,240 per month for childcare for her

grandchildren. The former wife indicated that she was also making

payments toward several debts that remained from the parties' divorce

that the former wife testified totaled approximately $12,000 in January

2024; however, she offered no evidence to support that assertion. 7 She

5She testified that she had not had an income at the time of the

parties' divorce. There is no indication of what the former wife's income
was in 2022.

6It appears that the former wife's base salary was approximately

$3,000 per month.

7The September 2017 divorce judgment provides the various debts

each party was to assume from the marriage.
6
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also acknowledged that she likely donated "thousands of dollars to

charities."

The former husband testified that he had served in the military for

approximately nine years, and, thus, was not eligible for military-

retirement pay; he had been honorably discharged in August 2005. He

testified that he had suffered a non-combat related spinal injury when he

had been deployed to Qatar. The former husband testified that he had

worked for the United States Army Corps of Engineers after he was

discharged from military service and that, pursuant to an income-

withholding order, approximately $461 per month had been withheld by

his employer to pay his monthly child-support obligation to the former

wife.8 Based on the information contained in the record, those payments

had been withheld monthly from January 2018 to November 2021. The

former husband explained that, although the income-withholding order

had been instituted to pay his child-support obligation, he had not sought

8The record contains several exhibits with overlapping exhibit
numbers. The former husband introduced as "Defendant's Exhibit 2" the
former wife's monthly budget. Later in the proceedings, the former
husband introduced, also as "Defendant's Exhibit 2," a list of
disbursements demonstrating "[p]roof of his payments pursuant to the
[income-]withholding order."
7
CL-2024-0704

to cancel the income-withholding order after the parties' child reached

the age of majority in July 2018. He said that, instead, he had considered

the payments made to the former wife pursuant to the income-

withholding order after July 2018 to have fulfilled his monthly alimony

obligation until he had become unemployed in November 2021.

The former husband testified that he lost his employment with the

Army Corps of Engineers in November 2021 because he was disabled and

because his position "went away." The former husband testified that he

had pursued a disability claim sometime after losing his job with the

Army Corps of Engineers. However, he also testified that, at the time of

his discharge from military service, he had qualified for 10% disability

through the United States Department of Veterans Affairs ("VA").

According to the record, the former husband qualified for 100% VA

disability in June 2020, and he began receiving approximately $3,566 per

month in VA disability benefits shortly thereafter. The former husband

testified that he had obtained full-time employment as a security guard

with D.E.S. Garrison ("D.E.S.") in April 2024; he testified that he earns

approximately $59,642 annually through his employment with D.E.S.

The former husband testified that D.E.S. pays him biweekly and that he

8
CL-2024-0704

has an "allotment" through D.E.S. that directly deposits $200 per

paycheck into the former wife's bank account.

The former husband testified that he and his current wife, Sharon

Bryson ("the current wife"), purchased a home in May 2023 for $650,000

and had used his VA benefits to secure a home loan for the property.

According to the current wife, she and the former husband were both

listed on the deed to the new home and the accompanying mortgage and

note. She testified that she had paid the $5,000 down payment for the

house and that the loan originated with the VA. The former husband and

the current wife testified that they allowed the current wife's daughter

to reside in their former home and that the current wife's daughter paid

the mortgage and utilities associated with that property.

The current wife testified that the monthly mortgage payment for

the new home was approximately $4,700 per month. She testified that

the former husband contributed $2,500 to $2,700 each month from his

VA disability benefit toward the mortgage payment. The current wife

also testified that the former husband was responsible for paying the loan

and insurance associated with his automobile. The former husband

9
CL-2024-0704

testified that he had a 2007 Dodge truck and that the loan on that truck

had a balance of $4,000.

The former wife presented evidence indicating that the former

husband and the current wife had taken trips to Jamaica, Bhutan, and

Mexico over the course of their marriage. The current wife acknowledged

those trips and testified that she had paid for the trips herself. The trial

court also questioned the current wife and the former husband on the

value of the rings that they wore to trial. The trial court noted that it

was asking those questions because the former wife had been questioned

by the former husband's counsel about the brand of shoes that she had

worn to trial.

The trial court entered a judgment in August 2024, finding the

former husband guilty of 22 counts of criminal contempt for failing to

make alimony payments for 6 months in 2021, 5 months in 2022, 8

months in 2023, and 3 months in 2024. The trial court sentenced the

former husband to serve 5 days in the Madison County Jail for each

count, for a total of 110 days of incarceration. In the same order, the trial

court also found that the former husband owed the former wife "$7,410

in alimony arrearages as of June 20, 2024," reduced that amount "to a

10
CL-2024-0704

judgment in favor of the [former wife] and against the [former husband],

for which execution may issue," and stated that "[i]nterest shall accrue

on said judgment at the statutory rate." The trial court also denied the

former husband's request that his alimony obligation be terminated.9

The former husband timely appealed without having filed a

postjudgment motion. The trial court, over the objection of the former

wife, granted the former husband's motion to stay the execution of the

contempt sentence pending his appeal.

On appeal, the former husband argues that the trial court was

biased in favor of the former wife, that the trial court denied him due

process by finding him guilty of 22 counts of criminal contempt, that the

trial court's finding of criminal contempt was not supported by the

evidence, that the 110-day sentence imposed by the trial court was

excessive, and that he had sufficiently demonstrated that his alimony

obligation to the former wife should have been terminated. We first

consider the former husband's argument that the trial court exhibited

bias against him. The former husband asserts that the trial court

9We note that the former wife has not appealed the trial court's

failure to include interest on the past-due alimony. See Glover v. Glover,
730 So. 2d 218 (Ala. Civ. App. 1998).
11
CL-2024-0704

"behaved as an attorney" for the former wife and that, in doing so, it

violated Canons 2.A. and 3.A.(3), Canons of Judicial Ethics. He further

claims that the trial court asked the current wife an improper number of

questions and made "sarcastic and undignified" remarks in response to

her answers; he also takes umbrage with the trial court's questioning

related to his tax history, including questions related to how the former

husband and the current wife obtained a VA loan. In addition, the former

husband contends that the trial court improperly relied on the former

wife as an "expert" in real-estate transactions by asking, based on her

"practice and experience" as a real-estate agent, whether the former

husband had to file taxes to obtain a VA loan. Finally, the former

husband argues that the trial court expressed clear bias by stating, at

the outset of the trial, that, if the former husband had not paid the former

wife and he had had the ability to do so, he would go to jail. However,

the former husband did not raise an objection at trial contending that the

trial court was biased; nor did he file a motion for recusal or a

postjudgment motion asserting that the trial court was biased against

him. Therefore, the former husband failed to preserve this issue for

appellate review. Shiver v. Butler Cnty. Bd. of Educ., 797 So. 2d 1086,

12
CL-2024-0704

1088 (Ala. Civ. App. 2000) ("Generally, a reviewing court cannot consider

arguments made for the first time on appeal.").

We similarly reject the former husband's argument that we should

reverse the trial court's judgment insofar as it denied his counterclaim

requesting the termination of his alimony obligation. Specifically, the

former husband argues that the former wife's increased income warrants

a termination in his alimony obligation. However, the trial court did not

make specific factual findings in its judgment concerning the denial of

the former husband's counterclaim and the former husband's argument

challenges the sufficiency and weight of the evidence. Our supreme court

has held that,

"in a nonjury case in which the trial court makes no specific
findings of fact, a party must move for a new trial or otherwise
properly raise before the trial court the question relating to
the sufficiency or weight of the evidence in order
to preserve that question for appellate review."

New Props., L.L.C. v. Stewart, 905 So. 2d 797, 801-02 (Ala. 2004). The

former husband failed to file a postjudgment motion challenging the

sufficiency or weight of the evidence. Therefore, we must affirm the trial

court's judgment as to this issue.

13
CL-2024-0704

We next consider whether the trial court denied the former

husband due process during the contempt proceeding by permitting the

former wife to present evidence of past-due alimony payments other than

those due in the specific months enumerated in her petition, as amended.

The August 2024 order finds the former husband to be in constructive

criminal contempt. See Rule 70A(a)(2), Ala. R. Civ. P., (defining "direct

contempt" as contemptuous behavior committed in open court and

"constructive contempt" as any civil or criminal contempt other than a

direct contempt); see also Gladden, 942 So. 2d at 370-71 (concluding that

a sentence imposing a definitive term of imprisonment of five days, as

opposed to an the imposition of an indefinite term of imprisonment

lasting only until the contemnor paid his alimony arrearage, constituted

a judgment of criminal contempt). Rule 70A(c)(1), Ala. R. Civ. P.,

provides that

"[a] proceeding based on constructive contempt, whether
criminal or civil, shall be subject to the rules of civil procedure.
The proceeding shall be initiated by the filing of a petition
seeking a finding of contempt (the petition may be in the form
of a counterclaim or cross-claim authorized under Rule 13[,
Ala. R. Civ. P.]). The petition shall provide the alleged
contemnor with notice of the essential facts constituting the
alleged contemptuous conduct."

(Emphasis added.) Additionally,

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"[i]n considering whether a lower court complied with the
requirements of due process in a case of constructive or
indirect contempt, we look to determine if the following
elements were present: (1) notice of the charges; (2)
reasonable opportunity to meet them; (3) right to call
witnesses; (4) right to confront the accuser; (5) right to give
testimony relevant either to the issue of complete exculpation
or extenuation of the offense; and (6) right to offer evidence in
mitigation of the penalty imposed."

Fludd v. Gibbs, 817 So. 2d 711, 713 (Ala. Civ. App. 2001).

The former husband specifically argues that he was not properly

notified of the charges against him because the former wife's initial

petition alleged that the former husband had failed to make payments in

only the months of January, April, July, August, September, October,

November, and December 2023 and was later amended to include an

allegation that he had also failed to pay alimony between January 2024

and April 2024. The record does not reflect that the former husband

objected to the introduction of evidence regarding past-due alimony

payments from 2021 or 2022. 10 Further, the former husband presented

10The former husband's attorney stated on the record her belief that

the parties had previously tried the issue of certain of the past-due
payments from 2021 and 2022 at a trial held before the 2024 trial. The
trial court observed that the last order regarding the former husband's
alimony obligation had been entered in August 2019. The former
husband's attorney did not object to the former wife's presentation of

15
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evidence and testimony regarding his attempts at making alimony

payments during those years and presented in his testimony reasons that

his failure to pay should be excused. Thus, the trial court could have

concluded that the issue regarding the former husband's alleged failure

to pay certain alimony payments in 2021 and 2022 was tried by the

implied consent of the parties. See Rule 15(b), Ala. R. Civ. P. (stating

that, "[w]hen issues not raised by the pleadings are tried by express or

implied consent of the parties, they shall be treated in all respects as if

they had been raised in the pleadings"), and Young v. Corrigan, 253 So.

3d 373, 379 (Ala. Civ. App. 2017) (quoting S.A.M. v. M.H.W., 227 So. 3d

1232 (Ala. Civ. App. 2017) ("When an issue is 'raised at trial without

objection, ... it [is] tried by the implied consent of the parties.' ")). 11

evidence regarding past-due alimony payments for months in 2021 and
2022 that were not enumerated in her petition after the trial court made
its observation.

11We note that the former husband objected to the introduction of

evidence concerning the 2019 arrearage amount, which was also not
included in the former wife's contempt petition. However, the trial
court's contempt order found the former husband in contempt for past-
due alimony payments that came due in unspecified months in 2021 and
2022 and in the enumerated months in 2023 and 2024. Further, the trial
court appears to have considered the 2019 arrearage amount only with
respect to the amount that the trial court found the former husband owed

16
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The former husband also argues that the evidence presented at trial

does not support the trial court's judgment finding him in constructive

criminal contempt. Rule 70A(a)(2)(C)(ii), Ala. R. Civ. P., defines

"criminal contempt" as including the "[w]illful disobedience or resistance

of any person to a court's lawful writ, subpoena, process, order, rule, or

command, where the dominant purpose of the finding of contempt is to

punish the contemnor." The trial court found that the former husband

willfully failed to comply with the June and August 2019 arrearage

orders.

Our standard of review in this matter is well settled.

"Unlike civil contempt, criminal contempt requires proof
beyond a reasonable doubt of the alleged contemnor's guilt.
See Ex parte Ferguson, 819 So. 2d 626, 629 (Ala. 2001).

" '[T]he standard of review in an appeal from an
adjudication of criminal contempt occurring in a
civil case is whether the offense, i.e., the contempt,
was proved beyond a reasonable doubt. Hicks v.
Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99 L. Ed. 2d
721 (1988); Combs v. Ryan's Coal Co., 785 F.2d 970
(11th Cir. 1986); and United States v. Turner, 812
F.2d 1552 (11th Cir. 1987) …. In Turner, the
Court, in discussing the standard of review in a
criminal-contempt case, said:

to the former wife in its August 2024 order, which, as discussed above, is
not a final judgment which would support this appeal.
17
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" ' "The essential elements of the
criminal contempt for which
punishment has been imposed on [the
defendant] are that the court entered a
lawful order of reasonable specificity,
[the defendant] violated it, and the
violation was wilful. Guilt may be
determined and punishment imposed
only if each of these elements has been
proved beyond a reasonable doubt."

" 'Turner, 812 F.2d at 1563.' "

Kizale v. Kizale, 254 So. 3d 233, 237-38 (Ala. Civ. App. 2017) (footnote

omitted) (quoting Ex parte Ferguson, 819 So. 2d 626, 629 (Ala. 2001)).

Additionally,

"The issue whether to hold a party in contempt is solely
within the discretion of the trial court, and a trial court's
contempt determination will not be reversed on appeal absent
a showing that the trial court acted outside its discretion or
that its judgment is not supported by the evidence."

Poh v. Poh, 64 So. 3d 49, 61 (Ala. Civ. App. 2010). Further,

" '[w]hen a trial court receives ore tenus evidence, its
judgment based on that evidence is afforded a presumption of
correctness on appeal and will not be reversed absent a
showing that the trial court exceeded its discretion or that the
judgment is so unsupported by the evidence as to be plainly
and palpably wrong.' "

Shook v. Shook, 385 So. 3d 65, 80 (Ala. Civ. App. 2023) (quoting Mullis v.

Mullis, 994 So. 2d 934, 936-37 (Ala. Civ. App. 2007)). However, we review

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issues of law de novo. Barber v. Moore, 897 So. 2d 1150, 1153 (Ala. Civ.

App. 2004).

In his brief on appeal, the former husband appears to acknowledge,

as he did at trial, that he did not make the alimony payments alleged in

the former wife's petition for contempt, as amended. Instead, the former

husband argues that, because he was unemployed between November

2021 and April 2024, he lacked the ability to pay his alimony. Although

the former husband fails to cite any relevant authority to support this

argument, we note that " '[t]he inability to pay child-support or alimony

is a defense to contempt.' " Rivera v. Sanchez, 297 So. 3d 1242, 1253 (Ala.

Civ. App. 2019) (quoting Watts v. Watts, 706 So. 2d 749, 751 (Ala. Civ.

App. 1997)). "When the accused presents evidence that he is unable

to pay the ordered amount, the burden o[f] proof is on the complainant to

prove beyond a reasonable doubt that he can comply." Watts v. Watts,

706 So. 2d 749, 751 (Ala. Civ. App. 1997). In support of his argument

that he did not have the ability to pay his alimony, the former husband

contends that the trial court could not consider his VA benefits in its

determination of his ability to pay. In making this argument, he relies

exclusively on Ex parte Billeck, 777 So. 2d 105 (Ala. 2000), which he

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asserts stands for the premise that VA disability benefits may not be

considered as income for periodic-alimony payments.

In Ex parte Billeck, our supreme court, applying Mansell v.

Mansell, 490 U.S. 581 (1989), held that a trial court could not consider a

military retiree's VA disability benefits received in lieu of military

retirement pay in the division of marital assets or in making an award of

periodic alimony. However, in this case, the former husband testified

that he had served approximately nine years in the military and, thus,

was not eligible for military retirement. In Nelms v. Nelms, 99 So. 3d

1228 (Ala. Civ. App. 2012), this court determined that the holding in Ex

parte Billeck did not apply to cases in which the VA disability benefits at

issue were not received in lieu of military-retirement benefits. Instead,

relying on the United States Supreme Court's decision in Rose v. Rose,

481 U.S. 619 (1987), we held that "a spouse whose income includes VA

disability benefits can be ordered to pay periodic alimony, even when all

or a portion of the alimony necessarily will be paid from those benefits."

Nelms, 99 So. 3d at 1232. We recently applied Nelms in Turney v.

Turney, 381 So. 3d 429 (Ala. Civ. App. 2022), a case in which the

appellant argued that the trial court had exceeded its discretion in

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considering his VA disability benefits as available income in its

determination of his ability to pay a periodic-alimony award. This court

held that "the trial court did not err in considering the [appellant's] VA

disability benefits when determining [his] ability to pay $2,500 in

periodic alimony." Id. at 450. It follows that, if a trial court can consider

VA disability benefits in determining the amount of an alimony award,

it may also similarly consider those benefits in determining whether a

former spouse who is alleged to be in contempt for failing to make

alimony payments had the ability to pay his or her alimony obligation.

Accordingly, the trial court properly considered the former husband's VA

benefits in determining his ability to make his alimony payments.

In its judgment finding the former husband in criminal contempt,

the trial court determined that the former husband had willfully failed

to make six alimony payments in 2021, five alimony payments in 2022,

eight alimony payments in 2023, and three alimony payments in 2024.

Thus, the trial court must have concluded that the former husband had

the ability to pay alimony at the time that each alimony payment had

come due. In the June and August 2019 arrearage orders, the trial court

directed the former husband to continue paying $400 per month in

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periodic alimony and to pay an additional $500 per month until the 2019

arrearage amount was paid in full. 12 Thus, the former husband was

required to pay $900 per month until the 2019 arrearage amount was

extinguished, at which time he would be responsible for paying only the

$400 per month in periodic alimony. The trial court recognized that the

former husband was already subject to a $461 per month income-

withholding order, and it directed that that order be continued and

ordered the former husband to make up the difference between the $900

due and the $461 being withheld by paying the former wife two

installments of $219.50 per month. Based on the June and August 2019

arrearage orders, it appears that the trial court considered $400 of the

$461 being withheld as satisfying the former husband's monthly alimony

obligation and the remaining $61, along with the two monthly

installment payments of $219.50, to comprise the $500 payment directed

toward the 2019 arrearage amount.

The former wife alleged at trial that the former husband still owed

$3,210.28 of the 2019 arrearage amount. However, she failed to

12As noted above, there is no reference in the June and August 2019

arrearage orders concerning the amount of interest owed on the 2019
arrearage amount.
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introduce any evidence supporting this assertion. In contrast, the former

husband presented evidence indicating that he had made payments

pursuant to the June and August 2019 arrearage orders until July 2020,

when he stopped making the $219.50 installment payments. 13 However,

he permitted the $461 withholding order to continue in effect until

November 2021. The former husband introduced evidence indicating

that the income-withholding order had resulted in the former wife's

receipt of 24 alimony payments of $461 in 2021.14 Therefore, the trial

court could not have found beyond a reasonable doubt that the former

husband had failed to make six alimony payments in 2021. Accordingly,

we reverse the trial court's judgment insofar as it finds the former

husband guilty of criminal contempt for missing six months of alimony

payments in 2021.

13Based on the record, the former husband made his required $400

monthly alimony payment and his $500 monthly payment toward the
2019 arrearage amount between September 2019 and July 2020. Thus,
it appears the former husband paid a total of $10,159.25 to the former
wife between September 2019 and July 2020.

14The record reflects that the former wife received three payments

of $230 pursuant to the income-withholding order in January 2021 and
July 2021. Therefore, the former husband had satisfied his December
2021 obligation by November 2021.

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In the section of his brief arguing that he had lacked the ability to

make his alimony payments from November 2021 to March 2024, the

former husband expressly states that he made certain alimony payments

from September 2019 to November 2021. While the former husband is

not as clear as we might prefer on this issue, the fact remains that he

asserted in his brief on appeal that he made his alimony payments

between January 2021 and November 2021. Put differently, implicit in

the former husband's argument that he failed to make his alimony

payments after November 2021 because he lacked the ability to make

those payments is an assertion that he had had the ability to make his

alimony payments between January 2021 and November 2021 and that

he had done so. Accordingly, we have elected to exercise our discretion

to address the former husband's implicit assertion that, although he had

paid amounts totaling 12 monthly alimony payments during 2021, the

trial court erred by finding him in contempt for nonpayment for 6 of those

months. See Kirksey v. Roberts, 613 So. 2d 352 (Ala. 1993); Hernandez

v. Rodriguez, 402 So. 3d 255, 259 (Ala. Civ. App. 2024).

With respect to the missed payments in 2023 and 2024, the former

husband conceded at trial that he had not made the payments asserted

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by the former wife in her contempt motion, as amended. Additionally,

the former husband's own evidence supports the conclusion that he made

only seven alimony payments in 2022. The former husband's sole

argument is that he did not have the ability to pay alimony between 2022

and April 2024 because he was unemployed and receiving only VA

benefits. As discussed above, the trial court could have considered the

former husband's VA benefits in determining whether he had had the

ability to pay his monthly alimony obligation. Although the former

husband did not present evidence of the amount of his VA benefit in 2022

or 2023, he testified at the June 2024 trial date that his benefit had

"recently" increased to approximately $3,566 per month and that the VA

had found him to be 100% disabled as of June 2020.

We also note that there is little evidence regarding the former

husband's expenditures during the time that he was alleged to have

failed to pay his alimony obligation; such evidence might have

established his inability to pay alimony. The former husband testified

that, as of the date of the trial, he owed $4,000 on his automobile loan,

but the record contains no evidence regarding his monthly payment on

that automobile loan. The current wife testified that the former husband

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paid approximately $2,700 per month toward the mortgage on their new

home; however, that home was acquired in May 2023, approximately one

year before the trial. Therefore, the former husband has failed to

establish that he lacked the ability to pay his alimony between 2022 and

April 2024, and the trial court could have found beyond a reasonable

doubt that the former husband had willfully failed to make his alimony

payments for five months in 2022, eight months in 2023, and three

months in 2024. Accordingly, we affirm the trial court's August 2024

order with respect to those instances of contempt.

The former husband argues that his $5,000 payment to the former

wife between the two dates of trial purged him of his contempt because,

he says, the trial court "order[ed]/encourage[d]" him to pay the former

wife after the April 2024 trial date and suggested that, if he did so, he

would not be held in contempt. Although the record reflects that, at the

April 2024 trial date, the trial court encouraged the former husband to

make a payment to the former wife, the trial court did not specify an

amount that should be paid, did not set forth its request in a written

order, or explicitly provide that the outcome of the proceeding would be

impacted if the former husband did make a payment. At the June 2024

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trial date, in response to the former husband's attorney stating that the

trial court had ordered the former husband to pay the former wife, the

trial court clarified on the record that it had "encouraged" the former

husband to make a payment and indicated that the former wife's claim

for past-due alimony would be reduced by the $5,000 that he had paid to

the former wife. Additionally, to the extent that the former husband

argues that the $5,000 payment purged him of each count of contempt

despite his failing to pay the full principal amount of the arrearage, he

offers no authority to support his argument. See Rule 28(a)(10), Ala. R.

App. P. (requiring that an appellant support the arguments presented in

his or her brief on appeal with citations to appropriate legal authority).

The former husband also argues that the 110-day jail sentence

imposed by the trial court was excessive. The former husband asserts

that he did not willfully violate the trial court's order requiring him to

make alimony payments to the former wife. He argues that "[f]ailing to

make a payment required under a court order isn't contemptuous.

Failing to make an alimony payment is a financial decision and not an

affront to a court, or court order." Upon finding the former husband in

criminal contempt, the trial court was authorized by Rule 70A(e)(1), Ala.

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R. Civ. P., and Ala. Code 1975, § 12-11-30(5), to punish the former

husband with a sentence of imprisonment not exceeding five days for

each count of contempt. See Rasmussen v. Rasmussen, 380 So. 3d 1048

(Ala. Civ. App. 2023) (affirming a contempt judgment imposing a

sentence of 45 days of incarceration for 9 counts of contempt). Therefore,

a 110-day jail sentence would be permissible if the former husband were

in fact guilty of 22 counts of criminal contempt. However, for the reasons

set forth above, the trial court had sufficient evidence to find the former

husband in criminal contempt only with respect to a total of 16 missed

alimony payments. Therefore, we reverse the August 2024 order insofar

as it sentences the former husband to 110 days in jail and remand the

case to the trial court to recalculate the former husband's sentence

pursuant to the authority granted to the trial court in Rule 70A(e)(1) and

§ 12-11-30(5).

Based on the foregoing, we reject the former husband's arguments

that the trial court's August 2024 contempt order is tainted by bias and

that the trial court's denial of his counterclaim was in error because the

former husband has failed to preserve those issues for appellate review.

We reverse that portion of the trial court's August 2024 judgment finding

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the former husband in criminal contempt for failing to make six alimony

payments in 2021. We affirm the trial court's August 2024 judgment

with respect to the contempt findings relating to the former husband's

failure to make certain alimony payments in 2022, 2023, and 2024. We

also reverse the August 2024 judgment insofar as the trial court imposed

a sentence of 110 days in jail, and we remand the case for the trial court

to recalculate the former husband's sentence in light of this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

WITH INSTRUCTIONS.

Moore, P.J., and Hanson, J., concur.

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